DAVID BRACE Appellant v. HER MAJESTY THE QUEEN, 2014 FCA 92

Date: 20140404 Docket: A-556-12 Citation: 2014 FCA 92 Present: STRATAS J.A. BETWEEN: DAVID BRACE Appellant and HER MAJESTY THE QUEEN Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on April 4, 2014. REASONS FOR ORDER BY: STRATAS J.A. Date: 20140404 Docket: A-556-12 Citation: 2014 FCA 92 Present: STRATAS J.A. BETWEEN: DAVID BRACE Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR ORDER STRATAS J.A. [ 1 ] The respondent moves for an order under Rule 351 permitting it to present new evidence on appeal.

[2] To understand the anticipated role of the new evidence in this appeal, it is necessary to set out some background. [3] The appellant appeals from a Tax Court order dated June 25, 2012. The Tax Court dismissed the appeal for failure toprosecute it in a timely fashion. In the course of its reasons for order, the Tax Court made a key factual finding: the appellant consistentlyrefused to provide any contact information such as a residential address. [4] The appellant delayed in filing his notice of appeal in this Court.

As a result, he had to bring a motion in this Court for anextension of time (which this Court granted). In his motion, he submitted that he was not made aware of the Tax Court’s order when itwas rendered and only became aware of it roughly four months later. He offered an affidavit in support of that motion. Attached as anexhibit to the affidavit was an undated letter from the appellant to the Tax Court. In that undated letter, the appellant informed the TaxCourt of his address. The appellant says he sent this letter to the Tax Court in mid-January 2012. [5] The appellant has filed the appeal book.

The undated letter appears in the appeal book. [6] It should not have appeared in the appeal book. The undated letter was not before the Tax Court. Normally, only documentsthat were before the Tax Court should appear in the appeal book. [7] Sitting in the appeal book, the undated letter tends to undercut the Tax Court’s key factual finding that the appellantconsistently refused to provide contact information. [8] The respondent has now discovered this problem. [9] Faced with this problem, the respondent had two options. The respondent could have moved for removal of the undatedletter from the appeal book.

Or it could have moved for the admission of fresh evidence related to the undated letter. The respondent haschosen to pursue the latter option. Although the former option has the virtue of potentially simplifying the issues on appeal, I shall dealwith this motion as the respondent has framed it. [10] The fresh evidence is a letter dated January 7, 2014 from Lucie Pilon of the Tax Court of Canada to Tokunbo Omisade of theDepartment of Justice.

In this letter, the Tax Court states that “the Court has no record of an undated letter that the appellant says heprovided to the Court sometime in mid-January 2012.” [11] The test for the admission of new evidence is stringent: Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759;Shire Canada Inc. v . Apotex Inc., 2011 FCA 10. In my view, all parts of the test are met in this case:

(1) The evidence should not be admitted if, by due diligence, it could have been adduced at trial. This is met. The January 7,2014 letter postdates the trial.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. This is met.The January 7, 2014 letter relates to the appellant’s undated document, which document formed a key part of the factual finding that thatthe appellant consistently refused to provide contact information.

(3) The evidence must be credible in the sense that it is reasonably capable of belief. This is met. Written by a court official inthe ordinary course of business, the January 7, 2014 letter is reasonably capable of belief.

(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, beexpected to have affected the result. This is met. If the panel hearing the appeal believes and gives weight to the January 7, 2014 letter,the letter may lead the panel to form conclusions regarding the appellant’s undated letter. This, as I have said, relates to the trial judge’skey finding that the appellant consistently refused to provide contact information.

[ 12 ] I further note that even when the Palmer test for the admission of fresh evidence has not been met, this Court has a residual discretion to admit new evidence on appeal in the interests of justice. But this is a residual discretion to be exercised only “in clearest of cases” and “with great care”: Shire , supra at paragraph 18; see also R. v.

J.A.A. , 2011 SCC 17 , [2011] 1 S.C.R. 628 where the Supreme Court itself admitted fresh evidence despite the Palmer test not being met, suggesting that this residual discretion does exist. [ 13 ] Were the Palmer test not met here, I would exercise my residual discretion in favour of admitting the January 7, 2014 letter. This case is unusual. The fresh evidence is being adduced to address other fresh evidence that was placed improperly into the appeal book. It is only one letter. I see no likelihood that its admission will set in train a series of complicated factual disputes in the appeal.

If that does not turn out to be the case, the panel hearing the appeal may make any order it sees fit concerning the admissibility of evidence before it, including the fresh evidence mentioned in these reasons. [ 14 ] Therefore, for the foregoing reasons, I grant the respondent’s motion. The January 7, 2014 letter shall be included in a supplementary appeal book along with my Order, these reasons, and a table of contents. The respondent shall prepare this supplementary appeal book and file it within four days. "David Stratas" J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-556-12 STYLE OF CAUSE: DAVID BRACE v. HER MAJESTY THE QUEEN MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: STRATAS J.A. DATED: April 4, 2014 WRITTEN REPRESENTATIONS BY : David Brace ON HIS OWN BEHALF John Bodurtha Tokunbo Omisade For The Respondent SOLICITORS OF RECORD :

William F. Pentney Deputy Attorney General of Canada For The Respondent